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Published: Fri, 02 Feb 2018

An analysis of international copyright legislation

“Where works are available only in digital form, the exceptions to and limitations upon copyright protection envisaged by most of the international copyright treaties are almost entirely neutralised”

Assess the accuracy of this statement and critically evaluate the extent to which the international copyright treaties do allow member states to include exceptions and limitations to copyright protection within national legislation.

INTRODUCTION

Copyright law is by no means a new concept. In the UK maps, books, charts and other literary material have all been covered by statute since 1710, when the Statute of Anne included copyright law in an Act of Parliament for the first time, although printed material, had already been covered by the Licensing Act since it was passed in 1662. This Act clearly specifies what is allowable, and that which is prohibited, with Section 32 clarifying the criteria for work copied for academic purposes. Additionally, Section 179 of the Copyright, Designs and Patents Act 1988 includes a table clearly defining specific words and meanings referred to in the Licensing Act[1]. A fundamental vulnerability precludes existing legislation from being applicable, or even adaptable, as revealed in the continuous flow of information through global broadband connections, across state and country boundaries.

As a result, any discussion on copyright legislation must, through connotation, evaluate the law surrounding trademarks and patents, with legislation from other jurisdictions also being examined Clearly, the necessity for increased security measures requires an innovative approach to reflect these sophisticated technological developments. This factor is expressed through this essay’s evaluation of ‘exceptions and limitations of copyright protection’ that might be ‘almost entirely neutralised’ by ‘most of the international copyright treaties’, revealing how ill-equipped the law is to deal with the modern concepts associated with cyber-law. This is reflected through the differing concepts in both the USA and China, although constraints on space preclude any evaluation on copyright legislation in China. Copyright legislation in the USA has, however, been discussed briefly.

The first section of this essay discusses the growth in network security and EU legislation which has particular implications on the development of digital technology. Trademark and copyright infringement is now relatively common place and a section has been devoted to these areas for more detailed discussion. The conclusion summarises these concepts and reiterates the notion that international copyright treaties are neutralised through Member States being allowed to incorporate exceptions and limitations to copyright protection within their national legislation, although, when EU Directives are involved, the only choice is in ‘form and methods’:

“A Directive is binding as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods”[2].

DISCUSSION

The end of the twentieth century has been radically changed by the World Wide Web[3], with the Internet and email both effecting and affecting the future of technological development accorded to the upsurge of globalisation in today’s fiscal marketplace[4], and potential opportunities filtering through to the legal profession worldwide[5]. Freely available in the West are all manner of legal documents available for downloading from the Web[6]. Data has become freely accessible in both paper and electronic formats world-wide[7]. An increasing importance over the burgeoning usage of the latest electronic and communications’ technologies has been realised with significant importance on networks and information systems being maintained.

2.1 Trademark Infringement

During the case of Ex Parte Salem[8], two important legal principles were identified, the first of which Mr Peter Prescott QC subsequently referred in the case of Oakley Inc v Animal Ltd. & Ors[9] on 17th February 2005. As a result, the Secretary of State instituted a ruling which would have implications in this case when it was later heard on 16th March 2005[10]. The second principle related to a derogation under Article 234 and was, therefore, referred to the European Court of Justice for a preliminary hearing. During the course of the case of Oakley Inc v Animal Ltd. & Ors[11], which revolved around whether Regulation 12 of the Registered Design Regulations 2001 could be considered ultra vires, this was subsequently referred to.

If it was proved that Regulation 12 was ultra vires the court would rule in Oakley’s favour. However, if this was not the case then Regulation 12 would retain validity under the old law of Registered Designs Act 1949 [Amended 1988][12] and would result in the Registered Design 2,059,677 being declared invalid in terms of registration because Oakley had actually used the design commercially prior to applying for this particular registration. In other words, under the 1949 Act there was no clause allowing a 12-month “period of grace” between using the design and arranging for it to be registered. However, in the 2001 Act there is such a clause[13]. It was noted that “The Secretary of State had purported to make the 2001 Regulations pursuant to the powers of Section 2(2) of the European Communities Act 1972”[14].

If this was, indeed, the case then EU Directive 98/71[15] would be the deciding legislation in this case as it would have superseded the 2001 Act of Parliament and would, according to derogation, recognise the validity of the 1949 Act. However, in order to change a specific policy it would have been necessary to make a change to primary legislation in order to impose Section 2(2) on the Registered Designs Regulations 2001, in order to amend clauses within the Registered Designs Act 1949 to reflect the 2001 Act. In other words, according to the 1949 Act, no clause existed to specify whether a specific design could be used commercially prior to it being registered. However, according to the 2001 Act, this was no longer allowable because an additional clause had been included without supplementary primary legislation being passed in effect, unilaterally, altering policy. In terms of the derogation contained in EU Directive Article 11.8, Judge Peter Barrett stated in obiter:

“It is permitted, but did not require, Member States to keep their old national law on the validity of existing design registrations”[16].

Furthermore, it was noted in this case that the Registered Designs Regulations 2001 contravened the Directive because the dates of enactment were the 8th and 9th December 2001, when it was a mandatory requirement, according to Article 19[17], that EU Directive 98/71 was reconstituted into national law before 28th October 2001, i.e. it had exceeded the deadline set by EU legislation by 5 weeks, invalidating the ‘default’ provision according to Article 6.2 of EU Directive 98/71, i.e. “…for the development, production or marketing of a computer program substantially similar in its expression, or for any other act which infringes copyright…”[18]. Accordingly, the derogation allowed that, as long as an Act of Parliament was made prior to 28th October, 2001 then that would set a future precedent and would become incorporated into the ‘harmonisation of national registered designs’ legislation’.

However, in view of the fact that this 2001 Act had been passed outside of the derogation period then, in accordance with the ethos of EU ‘transparency and legal certainty’ the validity of the 2001 Act could be challenged and the 1949 Act would be the lawfully recognised law. This is not the only case by any means, with claims of trademark infringement already common place. Just to complicate matters, EU Council Regulation Reference (EC) No 6/2002 on Community Designs was adopted on 12th December 2001[19]. In accordance with the EU harmonisation programme, all unregistered designs became protected from 6th March 2002 and, since 1st January 2003 all registered designs would now be administered from the Office for Harmonisation in the Internal Market, Trade Marks and Designs in Spain[20].

2.2 Network and information security

A prerequisite of a successful growth in e-commerce is the knowledge that an adequate system of protection has been established, illuminating the need for a satisfactory response to the ‘Country of Origin’ rule’[21] rule. The ‘Country of Origin’ rule could well provide a remedy to the perennial predicament of overlapping jurisdiction. The dynamic endorsement of unrestricted movement of resources and people epitomises the ethos of the EU. It was recognised that a ‘Country of Reception’ rule would actually diminish consumer protection and could not, for that reason be sanctioned by the EU. As internet access is synonymous with freedom of communication and information and is in the public domain, the resultant correlation between protection of end users and maintenance of freedom of expression revealed in a ‘Country of Origin’ rule would eliminate impediments to trans-border electronic transactions and enable consumers to have optimal access to commodities and services throughout the EU Member States.

As a result of personal data increasingly being stored on computers, the Data Protection Act 1998[22] was introduced, attempting to limit the misuse of personal data and provide certain rights to any person to whom that information relates. Certain Data Protection Principles need to be adhered to by Data Controllers who must apply to the Data Commissioner specifying the nature of the data[23]. An extension of the Data Protection Act was needed, relating specifically to software piracy which costs the software industry in excess of £3,000 million each year, with the result that the Copyright, Design and Patents Act 1988 (c. 48)[24] was introduced. This ensured that it was a criminal offence to copy or steal software, or to distribute software or accompanying manuals without permission or licence from the copyright owner. The licence states whether it is permissible to run copyrighted software on more than one machine concurrently.

The Directive on Electronic Signatures[25] was implemented in 1999 in all Member States, with electronic standardisation realised through the idea for a Smart Card Action Proposal[26] which was considered in the e-Europe Action, 2002/C86/02, relating to the accessibility of public websites and their content, superseded by the Privacy and Electronic Communications [EC Directive] Regulations 2003[27] which came into forceon 11th December 2003. Moreover, through an EU concept to introduce a mandatory European standardisation programme for all security measures, a joint report is awaited from both the European Committee for Standardisation, part of the Thematic Network Organisation[28] within the EU European Council and the European Telecommunications Standards Institute[29], whilst standardisation for biometric identifiers already endorsed. A Proposal on Biometrics in Visa and Residency Permits for Third Country Nationals was considered in September 2003 by ISO[30], with an additional Proposal in Passports considered in February 2004.

As a result of the Seville European Council[31], which met in June 2002, the EU is endeavouring to introduce a “culture of security” into its Action Plan 2005, incorporated into the publication document COM [2004] 757[32], emphasising the protection of the infrastructure between organisations. This factor was also recognised by the Lord Chancellor’s Department in the UK and realised through the European Network, and the Information Security Agency[33]. This legislation is expected to be identified and enforced through a Permanent Stakeholders’ Group, together with an independent Management Board based at Heraklion in Greece. The role of the European Network, and the Information Security Agency[34] as an agency will focus on risk management in relation to security and provide a centralised information and advice administration to tackle all issues likely to present a breach of security within the Member States[35], leading to the 2010 Challenges of the European Information Society Initiative “i2010”[36].

Attempts have been made by the EU to avoid any distinction between the dissemination of traditional methods of information and IP-based routes. The Data Protection Directive incorporates all information been transmitted through any means[37], by any individual to any location, including unsolicited communications such as SPAM[38]. The new legislation relates to both SMS and MMS, together with emails, and depends on an ‘opt-in’ system whereby prospective receivers must clarify their interest by agreement prior to receipt of unsolicited data. Whilst this has been designed to ensure freedom of choice and protection of privacy, additional Protocols[39] are considered necessary in a further attempt to reduce the amount of unsolicited data being transferred.

2.3 Global effects of Copyright Legislation

It has been acknowledged by the current Government that laws relating to copyright, together with all intellectual property rights, need to be modernised to remain relevant as technology evolves, although it has been left to the precepts of EU legislation to fulfil this criteria. Since the insurgence of cyber-space into nearly every aspect of life it has become increasingly necessary to address the issues of both trademark and copyright infringement. In the UK this is the responsibility of the Patent Office, whilst international infringements have, since 1994, come within the jurisdiction of the WIPO Arbitration and Mediation Centre based in Geneva[40]. The Mathys Report[41] on British Trade Mark Law and Practice was published in 1974, following which the Trade Marks Act 1994 set out specific legislation relating to EC Measures in respect of Counterfeit Goods[42], Part IV of the Patents and Trade Marks (World Trade Organisation) Regulations 1999[43], Section 6 of the Copyright etc and Trade Marks (Offences and Enforcement) Act 2002, and the Trade Marks (Proof of Use etc) Regulations 2004[44], all of which comply with the latest EC Directives in accordance with their e-Europe 2005 Action Initiative.

One major problem with the internet is that, apart from traversing boundaries, it infringes personal privacy. These violations of cyber-space are a global problem and suitable Internet legislation, and other laws relating to evolving technology, need to relate to a number of countries. It must be acknowledged that the Country of Origin Rule is a relevant factor although space constraints preclude more than a brief mention. Similarly, space constraints also restrict discussions relating to the developing cyber-law in specific countries, despite the burgeoning internet legislation in China[45], and their stringent privacy legislation, that is evolving through the attempts by the People’s Republic to find a niche within the global economy .

In the US a conundrum continues to be maintained between the ethos of the First Amendment and basic principles of copyright law, i.e. between free speech and free use[46]. Suggestions have been posited for a ‘collective licensing group like ASCAP’[47] to allocate payments to copyright owners according to electronic transmission[48]. Various suggestions alternate between laws similar to those in the UK covering academic usage to incorporating different clauses into existing legislation to alter liability. In copyright cases that are currently being litigated over, the First Amendment remains a defence which the courts have been interpreting as ‘fair use’ with the result that innocent copyright use is being misinterpreted and disenfranchised from ordinary administrative functions such as photocopying a single Hire Purchase document, or something similar.

A particularly restrictive update to the US Copyright Laws was passed by Congress in 1998. This testimony, relating to online copyright liability[49], together with the WIPO Copyright Treaties Implementation[50], has resulted in the “circumvent[ion of] copyright protection systems, or falsifying or altering copyright management information” becoming a criminal matter, with fines up to $1 million[51]. Additionally, access to much information that was previously in the public domain would now be prevented, refuting any acknowledgement of the ‘free use’ clause and having huge implications on the use of citations from reference sources: in effect precluding the “ultimate purpose of copyright – to promote knowledge and discussion”[52].

The United States Constitution[53] states that “the Congress shall have the Power… securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”, although this appears to be debatable in the case between the original author of the series of books known as ‘Winnie the Pooh’, later characterised by the Disney Corporation. Judge Charles McCoy Jnr not only ruled, in March 2004, in favour of the Disney Corporation’s claim against the Estate of AA Milne[54], but added the over-riding clause that it was “with prejudice”, effectively precluding this action being further pursued in its present form. This was partly due to the length of time copyright lasted following an author’s death.

Despite this, Section 102(a) of the US Copyright Act expressly details all modes of copyright: “original works of authorship fixed in any tangible medium of expression”[55]. Interestingly, if taken to extremes, owners’ copyright laws would be infringed when a radio was played in a public place, or certain items of interest were emailed to another[56], although an amendment was included in 1995 which enabled sound recording studios to “perform a copyrighted work publicly by means of a digital audio transmission” and which incorporated “non-subscription radio broadcasts”[57]. Furthermore, to ensure certain sectors would not be prosecuted when carrying out their jobs it has been necessary to incorporate an important exemption into this legislation: “…certain computer maintenance and repair activities; and protection for boat hull designs…”[58]

Despite the problems of copyright legislation in the USA, however, the EU would like businesses to perceive ENISA’s function, in collaboration with the European Parliament, as enabling maximal technological infrastructure to minimise their vulnerability to surveillance interception, either innocuously or through criminal intent. One method of ensuring business confidence is through the involvement of risk management and an acquiescence to maintain protocols within the global supply chain in accordance with EU Directives. Enhanced co-operation between Member States and, indeed, globally, should reduce potential security threats that, due to the amorphous nature of electronic technology unrestrainedly contributing to many forms of cyber-crime, will continue to pose a threat to all sectors regardless of boundaries.

The growth of information and freedom of communication in response to the exponential growth of the internet has resulted in considerable global benefits whilst, at the same time, have provided a potential security threat universally to personal privacy and decency. The ‘Country of Origin’ rule instigated by the EU in 2002 has attempted to provide an answer to the problem of the cross-border internet and overlapping jurisdictions’ contradictory content regulation laws with respect to both defamation and obscenity. In the absence of more effective measures, this Directive has attempted to provide some legal parameters for Member States guidance until a more effective means can be established.

CONCLUSION

The ‘Country of Origin’ rule instigated by the EU in 2002 has attempted to provide an answer to the problem of the cross-border internet and overlapping jurisdictions’ contradictory content regulation laws, with this Directive attempting to provide some legal parameters for Member States’ guidance until a more effective measures can be established. It would appear that strenuous efforts to introduce completely new legislation based on Directives, Protocols and Derogations influenced by the European Community might succeed amongst the Member States and eventually percolate through to other jurisdictions. To date, however, cyber-law continues to flounder although, through default, a solution might eventually be found.

Law in the UK is totally dissimilar to that in China or the US, with some similarities to Canada, Australia and New Zealand and many differences, much of which is due to the effect of EU laws on Member States. Until recently, individual Member States each relied upon existing statutes and constitutions within their own jurisdictions to regulate and punish internet crime, with more serious transgressions in the UK being punishable with imprisonment in accordance with the Criminal Justice Act [UK] 1988, and the Defamation Act 1996 (Section 1) providing for an ‘internet defence’. In China, however, either life imprisonment or the death penalty has, until recently, been the penalty for infringement of what has been described as “China’s nascent Internet security strategy”[59].

Limited copyright protection continues to exist within national legislation in each individual Member State, with considerable leeway provided by international copyright treaties through the application of such derogations as Article 11.8. The Director General of the Federation Against Software Theft has recognised that ‘exceptions and limitations to copyright protection’, thought to have been ‘almost entirely neutralised’ through the introduction of ‘international copyright treaties’, remain an issue:

“Copyright protection for software is really the Cinderella in comparison with howcopyrightprotects other works and trademark law. While the Police are able to invoke Section 109 of the Copyright, Designs and Patents Act 1988…

resources from central and local government are simply not being made available”[60].

There appear to be no forthcoming answers although many countries still attempt to find suitable solutions. However, until there is a degree of amelioration between laws in different jurisdictions it will continue to be difficult to find an acceptable solution. At present each country is attempting to acknowledge legislation that is different around the globe as it is the only way forward. Both the Country of Origin Rule and the Memorandum of Understanding go some way to dealing with this. It would appear that strenuous efforts to introduce completely new legislation based on Directives, Protocols and Derogations influenced by the European Community might succeed amongst the Member States, such as that revealed in the ECJ case of Markopoulos:

“A Directive is binding as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods”[61].

It would appear that international copyright treaties do allow Member States to include exceptions and limitations to copyright protection within national legislation, but within EU guidelines with Member States free to choose the ‘…form and methods’ of application while observing the ethos of the relevant EU legislation.

Fu-Tomlinson, Yingxi (2002): Personal Data Protection in China. In The China Business Review: Articles 37, 39 and 101 of the General Principles of Civil Law in China (1986) Vol 29 (4) 7th January 2002 at Page 36

Jha, Alok (2003): “Brightmail, a company that produces filtering software for internet service providers, estimates that up to 50% of global email traffic last month was spam, compared with 8% two years ago”. Science Correspondent, The Guardian Unlimited, Friday, 19th September 2003. Available from: http://www.guardian.co.uk/online/spam/story/0,13427,1045330,00.html